Attack of the Killer Tomatoes II

A sample from the conclusions of the recent EU summit:

In addition, until 31 March 2017, if members of the Council representing at least 75% of the population or at least 75% of the number of Member States necessary to constitute a blocking minority as provided in Article [I-25(2)] indicate their opposition to the Council adopting an act by a qualified majority, the mechanism provided for in the draft Decision contained in Declaration nş 5 annexed to the Final Act of the 2004 IGC [shall apply]. As from 1 April 2017, the same mechanism will apply, the relevant percentages being, respectively, at least 55% of the population or at least 55% of the number of Member States necessary to constitute a blocking minority as provided in Article [I-25(2)].

There’s 15 pages more of Annex 1 on similar lines. I especially like:

In III-275(3) only: “The specific procedure provided in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.”

Your eyes glaze over? You hadn’t realized that “acquis”, without italics, is a word of the English language as spoken in Brussels? That’s the point.

Angela Merkel may act and look like Mrs Doubtfire but she’s a redoubtable politician. The adversaries she leaves stranded in her wake wonder quite what happened to them. Remember the proposed Constitution for Europe, released by Giscard d’Estaing with great fanfare in July 2003, and adopted as a treaty (sections, complete) in December 2004? The one subsequently binned by the French and traditionally Europhile Dutch in referenda? It’s back again from the dead, thanks to the magic of Dr. Merkelstein. Hence my title, also a nod to the vampiric survival powers of the appalling Common Agricultural Policy.

The Brussels meeting agreed to hold an intergovernmental conference this year to approve a reform treaty. To approve, not negotiate; the governments could send the office cleaners so long as they can sign on the dotted lines. The treaty could be rejected by national parliaments, but that’s it.

The French and Dutch referenda could be interpreted several ways. Their voters:

  1. didn’t mind the content but objected to the trappings of a confederal constitution;
  2. objected to the small increments in EU powers it provided for;
  3. learnt from the constitution for the first time what the EU was really up to and decided they didn’t like it;
  4. approved of the idea of a proper constitution, but thought Giscard’s skilful consolidation was still too respectful of murky Brussels technocratic traditions and wanted a transparent rewrite from first principles.

The last is of course my own take, and I have no reason to think it’s widely shared – yet. I reckon (2) is also very unlikely – you would have needed a PhD in Eurology to understand exactly what the differences in powers were from the status quo ante resulting from the Maastricht and Nice treaties. These are educated publics, but not that educated.

Explanation (1) seems unlikely to me, but the Brussels equivalent of the Beltway crowd have settled on it, at least for public consumption. So the recent agreement strips out all references to “constitution”, “laws”, and the European “foreign minister.” But it leaves all the substance of the Constitution, bar recent tweaks:

As far as the content of the amendments to the existing Treaties is concerned, the innovations resulting from the 2004 IGC will be integrated into the TEU and the Treaty on the Functioning of the Union, as specified in this mandate.

The existing supremacy of EU over national legislation is also reaffirmed. So the Reform Treaty will be a purely cosmetic removal of Giscard’s cosmetic rewrite, like stone-washing of Levis or the aerosol mud sold to London yuppies to spray on the wheels of their garaged SUVs for Monday morning.

The real beauty of Merkel’s plan is the way it deals with the probable reason for the referendum noes, (3). The defect of Giscard’s draft was that it was comprehensible. The latest plan is, following longstanding practice, written in opaque bafflegab; the peasants may grumble, but they can’t follow it enough to revolt.

Consider the basic structure of the treaties. At present you have:

  • the European Community Treaty, descended from the EEC, plus the fossilised legacy treaties for the ECSC, Euratom, etc;
  • the European Union treaty , which largely consists of amendments to the former set, but adds sweeping objectives and chapters on foreign, security and crime policies.

If you want to find out the powers of the EU in a given area, you have to read both. The Reform Treaty will amend both these treaties, which it fair enough. But it will rename the latter the “Treaty on the Functioning of the Union”: a misleading description, as the real meat on the internal market and agricultural policies will still be there, not in the EU treaty, which will still include all those amendments to the other one. Is that clear, children?

The complexity isn’t just a matter of bad drafting. It follows from Jean Monnets’s Big Idea, a complete delegation from states of executive (and later legislative) powers in precisely defined fields, as opposed to the traditional intergovernmental approach of broad objectives and a defined process but few initial powers. The machine was designed to accumulate new competences; and as it does so, different procedures are introduced to reflect the political compromises of the time. This confusing pattern has been left intact; a serious defect in that democratic accountability through the European Parliament is far less on crime and security policy than in economic matters.

Eurosceptics should be more frightened of Merkel’s treaty than the Constitution. For by its name, it marked a move away from Monnets’ messianic pragmatism toward a stable Madisonian federalism. It would have been very difficult to change. The Reform Treaty is just another technical amending treaty, like Maastricht and Nice, and doesn’t mark any endpoint. The EU will go on merrily accumulating powers.

The human rights provisions are weird. Up to now, there’s been an odd arrangement by which the continent’s human rights instrument, the European Convention on Human Rights (ECHR) , with a decent list of justiciable civil rights and an unwieldy but professional Court, has operated since 1949 entirely outside the EU. It’s run by the intergovernmental Council of Europe in Strasbourg, my former employer. The EU is jealous and as part of the constitution exercise drafted its own Charter including social rights like the right to a decent environment and social security. The Council of Europe has tried for years to head this off by pushing the idea of the EU becoming a party to the ECHR.

To deal with the problem, the Brussels summit has:

  • ditched the language of a constitution which alone made a separate charter necessary;
  • approved a separate charter of rights in the new Reform treaty;
  • decided that the EU will ratify the ECHR as well.

How is all this supposed to work? The Council’s old solution of ratification was fine so long as the EU was basically an economic organisation, so actual cases were unlikely, but the growth area in the EU is crime. Try a thought experiment. Ahmed lives in Munich but is wanted by the Italian police for running a drugs operation on the Riviera. They issue a European arrest warrant and alert other police forces through Europol. Acting on a tipoff from the German police, Belgian cops arrest him in Antwerp and transport him illegally to France, where the Marseilles police are also looking for him. There he is brutally interrogated by French and Italian policemen before they conclude it’s a case of mistaken identity, blaming Europol, and release him with multilingual apologies. Ahmed sues the national governments and the EU for compensation, claiming violations of the ECHR and the new Charter. Eventually the case reaches both the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg, Which court is competent? Which texts apply to which actions? Remember that the EU has ratified the ECHR, so is accountable there for the action of its officials.

It looks to me as if the the Brussels summit has managed to change a system that was more or less comprehensible to the citizen into a rococo maze for the citizen and a truffle bed for lawyers.

Update 29/06 Henry Farrell has more on Crooked Timber.